If it is difficult, perhaps impossible, to prove statistically, and just as hard to disprove, that the death penalty deters more from capital crimes than available alternative punishments do (such as life imprisonment), why do so many people believe so firmly that the death penalty is a more effective deterrent?

Some are persuaded by irrelevant arguments. They insist that the death penalty at least makes sure that the person who suffered it will not commit other crimes. True. Yet this confuses incapacitation with a specific way to bring it about: death. Death is the surest way to bring about the most total incapacitation, and it is irrevocable. But does incapacitation need to be that total? And is irrevocability necessarily an advantage? Obviously it makes correcting mistakes and rehabilitation impossible. What is the advantage of execution, then, over alternative ways of achieving the desired incapacitation? More important, the argument for incapacitation confuses the elimination of one murderer (or of any number o

In contrast to the general declines in the leading death penalty states, the largest abolitionist states have seen rising homicide rates. Among non- death penalty states, nine are large enough to have two congressmen and have no wild swings in murder rates from year to year. These states are Wisconsin, Minnesota, Massachusetts, Iowa, Michigan, West Virginia, Rhode Island, and Hawaii. Of these, six have seen their murder rates go up since 1966 (Wisconsin, Minnesota, Michigan, West Virginia, Rhode Island, and Hawaii), one has stayed the same (Maine), and two have seen slight reductions (Massachusetts by 0.4 of a percentage point and Iowa by 0.1 point) (U.S. Department of Justice, Bureau of Justice Statistics, 1999).

These state-by-state comparisons are bolstered by more sophisticated and recent econometric analysis that controls for the variety of demographic, economic, and other variables that differ among the states. The best of these studies suggest that the death penalty has an incremental deterrent effect over imprisonment; in plainer terms that the death penalty saves innocent lives.

If standards of cruelty did evolve, so that what was not thought "cruel and unusual" when the Fifth and Eighth Amendments were passed now is perceived to be, should the death penalty become unconstitutional? One first must ask: Perceived by whom? The people? If so, why not let them vote? The judges of the Supreme Court? They were not elected. Their task certainly is not to interpret popular feeling or perception. They do not take polls and are not meant to respond to popular feelings. They are meant to interpret the law independently. Nor are the judges meant to enact their own moral theories into law. It is not the task of the Supreme Court to discover or to reveal new moral standards. Their task is to interpret the laws, including the Constitution. If the voters want to accept new moral standards, if, for instance, they now consider the death penalty wrong, they can vote accordingly to elect representatives who will repeal it. Courts are not meant to be legislatures. Our Constitution distinguishes the making (or repealing) of laws, through the political process, from the interpretation of laws through the judicial process. The judges are supposed to interpret laws. Legislators are to make them.

Some common words found in the essay are:
, Supreme Court, Stephen Nathanson, James Wilson, Fifth Amendment, Instead American, death penalty, Justice Statistics, Eighth Amendment, Department Justice, Gregg Georgia, deterrent effect, cruel unusual, life prison, supreme court, capital punishment, death penalty deters, potential murderers, effect death, penalty deters, deterrent effect death, effect death penalty, consider death penalty, cruel unusual punishment, life imprisonment,
Approximate Word count = 3183
Approximate Pages = 13 (250 words per page double spaced)